There has been a series of damning court judgments in the past 12 months exposing the government’s systematic failure to uphold the constitutionally protected land rights of the poor and vulnerable.
Section 25 of the constitution is not just about property rights. It also creates the right to security of tenure and restitution for those harmed by past racial discrimination. It imposes a duty on the government to take steps to provide for equitable access to land — in other words to redistribute land from those who have too much to those who have none.
The Constitutional Court has detailed how restitution claims submitted before 1998 remain unresolved; that the government simply stopped processing labour tenant claims, and how the informal land rights protected by the constitution have been routinely abrogated by mining.
Two inquiries into the state of land reform, the Kgalema Motlanthe high-level panel report of 2017 and the presidential advisory panel report of 2019, have laid bare the dire societal consequences of the spatial inequality and structural exclusion that postapartheid “land reform” and “development” policies have entrenched and deepened; and how land and budgets meant for the poor have been systematically redirected.
To complement these powerful judgments and panel reports we now have the Baloyi commission report, which describes the rampant unlawfulness that has characterised mining deals on the platinum-rich land of the Bakgatla ba Kgafela community near Rustenburg. It explains how politically connected traditional leaders are able to enrich themselves at the expense of rural people. Government collusion is an ingredient, as is the conduct of the big mining companies and legal and accounting firms.
The report of the commission of inquiry into the affairs of the Bakgatla ba-Kgafela community describes some of the multibillion-rand deals that Kgosi Nyalala Pilane has entered into with mining companies since 2004.
Pilane derives his traditional leader status from the North West Traditional Leadership Act. This law prescribes that traditional leaders and councils must regularly account to their “subjects”; that all monies derived from whatever source must be deposited into a “tribal” account held in the premier’s office — except with explicit exemption — and must be audited annually by the auditor-general.
The report details how Pilane has failed to account for the deals to either his traditional council or the 32 villages that make up the Bakgatla community. It describes the many unauthorised accounts into which he has deposited money and his refusal to account for it, which has made it impossible for the auditor-general (or anyone else) to audit community assets.
The report describes large transactions between Pilane, Anglo Platinum, Rand Merchant Bank and Brian Gilbertson’s Pallinghurst Resources, among others. In 2012 the Industrial Development Corporation made an investment of R3,2bn into Sedibelo Platinum Mine, a joint venture between Pilane and Pallinghurst.
The Bakgatla have little to show for these multibillion-rand deals. Instead the villages continue to be characterised by deep poverty and fury at the way in which their birthright has been squandered. The villagers have tried repeatedly to get accountability.
Three cases involving Pilane have, however, made it to the Constitutional Court.
The first, in 2013, concerned an interdict he obtained to stop community members calling and holding meetings without his express authority. This was found to be in breach of their right to freedom of assembly.
The second, in 2015, concerned restitution land awarded to the community, which it wanted owned by a communal property association. Pilane insisted it be held in a trust headed by himself. The court found his wishes could not trump the democratic choice of the community.
The third is the landmark Maledu judgment of 2018. Pilane’s mining company had obtained an eviction order for land that had been bought a century previously by the community of Lesethleng, one of the 32 Bakgatla villages. The court quashed the eviction on the basis that mining rights cannot trump the right to security of tenure. It ordered that the consent requirements of the 1996 Interim Protection of Informal Land Rights Act must be complied with.
It is important to note that Pilane is deputy chair of Contralesa, an organisation of traditional leaders that has strongly lobbied government to enact the Traditional and Khoi-San Leadership Bill, which would give them sole authority to sign mining deals. They have lobbied successfully for a draconian version of the Traditional Courts Bill, which provides coercive powers over all who live within their disputed apartheid-era tribal boundaries. Despite concerted rural opposition the bills were rammed through the National Assembly shortly before the 2019 elections.
Pilane’s explanation for his failure to comply with the law appears to be that he was operating in a no-mans-land between two systems — company law and customary law. The commission calls this “disingenuous” and recommends that protocols be developed that align the systems of law and ensure that Interim Protection of Informal Land Rights Act consent is obtained before mining commences.
The report illustrates how the protective measures included in traditional leadership laws are simply ignored and never enforced. Such laws appear compliant with the constitution because they contain checks and balances, but no infrastructure or protocols are put in place to enforce or oversee them.
The report illustrates that business institutions and large law firms have turned a blind eye to unlawfulness. The business community has been eloquent about the threat to property rights in the policy of expropriation without compensation but silent about the fact that poor black people have been stripped of land rights without compensation — or even an expropriation process — in mining transactions.
It is common cause that SA faces risk because of high levels of inequality and deepening poverty. It is also common cause that it is difficult to turn poverty and inequality about, and to instil a culture of accountability in broken institutions. A necessary (and easier) starting point must be to desist from practices that deepen inequality and flout accountability. First do no harm.
It is too late for the Bakgatla villages. Their money and their platinum are gone. But the government and business need to take the commission’s report seriously and do some introspection about the vested interests that made them turn a blind eye to the illegality of mining deals in the Bakgatla area.
Premier Job Mokgoro has approved the commission’s recommendations, including a forensic probe to decide on criminal prosecutions and placing the affairs of the Bakgatla under administration. Pilane and the royal family have said they intend to take the report on review.
This post first appeared in Business Day on 26 September 2019.
